JUDGMENT Jayant M. Patel, J. 1. The present appeal is directed against the judgment and the order passed by the learned Sessions Judge in Sessions Case No. 96 of 2009, whereby the accused has been convicted for the offence under Sec. 302 of Indian Penal Code and sentenced to life imprisonment with the fine of Rs. 1,000/-. The learned Sessions Judge has also convicted the accused for the offence under Sec. 506(2) and sentenced for 2 years R.I. with the fine of Rs. 500/-. The short facts of the case are that on 28-1-2009 the complaint was filed by Artiben (hereinafter referred to as 'deceased) with 'D' Division Police Station of Bhavnagar stating that on the date of the incident at about 4-00 O'clock accused had come to meet her in chawl, since there was love affair with her since last about one and half years. In this regard the mother of the deceased scolded the accused and there was quarrel with the mother of the deceased and the sister of the deceased and when they said the accused that police complaint shall be filed the accused went away. Thereafter, since the deceased was at residence, the accused called deceased to meet at the bank of river behind residence and told her by giving a threat that if his name is given by the deceased he will kill the deceased, and therefore, she had gone to meet the accused, and thereafter, came back. At about 7-00 O'clock the accused again came to the residence of the deceased and when she was inside the room of Jagruti, the accused told the deceased that they may both burn themselves and then the accused poured half of the bottle of the kerosene upon the deceased and with the math-stick set fire and when the deceased started burning and came in falia (open space), the accused run away by leaving her in burning condition. At that time, Anwarbhai came and the deceased thought that he will save her, and therefore, she went near him and she embraced the son of Anwarbhai who also received burn injury. By that time the other persons gathered and the wife of the elder brother of her father came there, and thereafter, one Jigabhai Vankar made a phone call and 108-Ambulance was called for treatment. She was brought to the hospital and then the complaint was filed. 2. By that time the other persons gathered and the wife of the elder brother of her father came there, and thereafter, one Jigabhai Vankar made a phone call and 108-Ambulance was called for treatment. She was brought to the hospital and then the complaint was filed. 2. The aforesaid complaint was investigated by the police, and thereafter, charge-sheet was filed against the accused. The prosecution in order to prove the guilt of the accused examined 10 witnesses and produced documentary evidence of 25 documents, the details of which are recorded by the learned Sessions Judge at Para 4 of the impugned judgment. The learned Sessions Judge thereafter recorded the statement of the accused under Sec. 313 of the Criminal Procedure Code wherein the accused denied the evidence against him, except that he was knowing the deceased. In the further statement the accused stated that wrong facts are stated by his rivals and false complaint is filed. He had no love affair with the deceased and he is innocent. The learned Sessions Judge thereafter heard the prosecution as well as defence and found that the prosecution has been able to prove the case beyond reasonable doubt for the offence under Secs. 302 and 506(2) of Indian Penal Code. Thereafter the learned Sessions Judge heard the prosecution as well as defence for sentence and ultimately imposed sentences for the respective offences as stated hereinabove. Under the circumstances the present appeal against the conviction by the accused-appellant herein. The appellant who is original accused shall be referred to hereinafter as the accused-appellant. 3. Mr. Pathan, learned Counsel appearing for the appellant and Mr. Jani, learned A.P.P. for the State have taken us through the entire evidence on record. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have heard Mr. Pathan, learned Counsel appearing for the accused and Mr. Jani, learned A.P.P. for the State. 4. It can be said that the case of the prosecution is based on dying declaration of the deceased recorded during her life-time. There are in all two dying declarations; one is the declaration made by way of complaint at Exh. 48 by the deceased before the Police Officer and the second is the dying declaration recorded by the Executive Magistrate at Exh. 16. In the testimony of the Police Officer - Keshubhai Jivabhai Bhil, P.W. No. 9 Exh. There are in all two dying declarations; one is the declaration made by way of complaint at Exh. 48 by the deceased before the Police Officer and the second is the dying declaration recorded by the Executive Magistrate at Exh. 16. In the testimony of the Police Officer - Keshubhai Jivabhai Bhil, P.W. No. 9 Exh. 44 read with the testimony of another Police Officer (I.O.) Shasikantbhai Chandubhai Dave, P.W. No. 10 Exh. 47, the contents of the complaint are proved to the extent of the declaration made by the deceased as stated in the complaint before the Police Officer and the Police Officer having registered the same. The thumb-impression of the deceased in the complaint was taken in presence of the Police Officer and the same was identified by Niravbhai Acharya, who is brother-in-law of the deceased. Therefore, in this manner the evidence for the registration of the complaint by the deceased during her life-time by way of a declaration made before the Police Officer is proved by the prosecution. The second D.D. Exh. 16 is recorded by the Executive Magistrate and the testimony of Rajendraprasad B. Joshi, P.W. No. 3 Exh. 12 who was Executive Magistrate at the relevant point of time and recorded the D.D. of the deceased, fully support the case of the prosecution. As per the testimony of the said witness he had verified with the doctor about the consciousness of the deceased before recording of the dying declaration. Not only that but the doctor was present when D.D. was recorded. There is endorsement of the doctor upon the D.D. itself. As per the D.D. recorded by the Executive Magistrate, the deceased declared that she had love affair with the accused who is staying near to her residence since last one year. On the date of the incident at about 7-00 O'clock the accused had come to residence of the deceased and had called her outside the home and when she came outside the home near corner, he sprinkled kerosene from the bottle upon the deceased and thrown the match-stick and set fire, and thereafter, he ran away. At that time nobody was present. The deceased had' tried to extinguish fire. By that time her grand-mother Bachuben came and emergency van was called and she was admitted in the hospital. At that time nobody was present. The deceased had' tried to extinguish fire. By that time her grand-mother Bachuben came and emergency van was called and she was admitted in the hospital. The defence in the cross-examination of the said witness has not been able to bring about any material contradiction except on the aspect of love affairs for 10 years that there is deletion and stated as one year. He has stated that since it was recorded in haste, correction was made. The said Executive Magistrate has stated that the D.D. is in his own handwriting. When the question was put about the medicines on the left hand, the said witness has stated that he did not find any medicines on the left hand. In this manner the testimony of the said witness fully supports the case of the prosecution. It can be said that there were mainly two D.D.; one by way of complaint Exh. 48 and another by way of D.D. Exh. 16. The third declaration, if any, can be considered in the medical history given by the deceased before the doctor. In the Certificate issued by Dr. J.R. Shrivastav, P.W. No. 5 Exh. 18 it has come on record that the deceased had given history by herself before the Doctor and when she was playing outside her residence the accused - her lover came prior to about one and half hours and poured kerosene and with the help of match-stick set fire and she had sustained injury. The dying declaration if considered as made in the complaint at Exh. 48 with the dying declaration made before the Executive Magistrate Exh. 15 and the third one by way of history given before the doctor as per the Certificate Exh. 20, there is consistency on the aspect of pouring of kerosene by the accused upon the deceased, use of the match-stick for setting fire upon the deceased and there is no inconsistency on the said aspect. 5. Mr. Pathan, learned Counsel appearing for the appellant strenuously urged that the inconsistency is not only to be seen for the commission of crime or the incident of pouring kerosene upon the deceased by the accused and setting fire but is also to be considered on the other aspect stated in the complaint and in the dying declaration recorded before the police and the history given before the Doctor. In his submission, there is complete inconsistency for the earlier events of quarrel with the mother and sister, the threat given by the accused and also for the place at which the kerosene is stated to have been poured by the accused upon the deceased. In his submission as there is inconsistency on the said aspect, the reliability of the dying declaration would be lost and the accused would be entitled to the benefit. He submitted that there is no corroboration to the dying declaration inasmuch as there was no eye-witness as stated in the complaint, Anwarbhai had come but he has not been examined by the prosecution and under these circumstances he submitted that it cannot be said that the prosecution is able to prove the case beyond reasonable doubt even if the case is based on dying declaration, and therefore, the accused would be entitled to the benefit. 6. It is by now well settled that when the case of me prosecution is based on dying declaration, the prosecution is required to prove two material and important aspects; one is that the deceased was in conscious condition and the second is that the statement in the dying declaration was voluntary and not by way of coercion or under compelling circumstances. On the first aspect of conscious condition of the deceased by the testimony of Dr. Jamsharan R. Shrivastav, P.W. No. 5 Exh. 18 when he examined the deceased for the first time though there was 100% burn the Doctor has stated that the pulse rate was 96, temperature was normal and the blood pressure was 100/60 and when mental condition was examined she was in conscious condition and was giving co-operation. The said testimony of the doctor is supported by the medical papers at Exh. 26 wherein it is recorded that the patient is fully conscious, co-operative, well oriented to time place and the person, when the deceased was examined on 28-1-2009 at 22-45. Further at the time when the D.D. is recorded by the Executive Magistrate at 23-05 on the same day there are noting in the medical papers that the patient is fully conscious, co-operative, well oriented to time place and the person. B.P. is recorded of 104/74. Further at the time when the D.D. is recorded by the Executive Magistrate at 23-05 on the same day there are noting in the medical papers that the patient is fully conscious, co-operative, well oriented to time place and the person. B.P. is recorded of 104/74. There is no material contradiction to the said part of medical evidence, and therefore, it can be said that the deceased, when declared before the Executive Magistrate, was in full conscious condition and well oriented. 7. On the aspect of voluntariness of the statement, the Executive Magistrate, Rajendraprasad Joshi, P.W. 3, Exh. 12, has stated that all relatives of the patients were sent outside and only Doctor was present. In the cross-examination, the defence has not been able to bring about any material contradiction, but on the contrary, in the cross-examination, the said witness has re-confirmed that at the time when the dying declaration was recorded, there was no other person except Doctor until the whole dying declaration was recorded and until he went out, no other person had come. Under these circumstances, it can be said that the prosecution has been able to prove that the deceased when made declaration before the Executive Magistrate in dying declaration, the same was voluntary and more particularly when no circumstances were brought about by the defence that there was any coercion or compulsion on the part of the deceased. When both the circumstances of declarant in conscious condition and the declarant had declared before the Executive Magistrate voluntarily are proved by the prosecution, it can be said that the dying declaration with the circumstances duly proved can be relied upon for basing the conviction. However, the Rule of prudence, even if to be applied, the Court may trace the corroboration to the dying declaration. Under the circumstances, the first dying declaration made before the police in the complaint at Exh. 48 that the deceased had sustained burn injuries, can be considered for corroborative evidence. There is no inconsistency in the complaint at Exh. 48 given by the deceased before the police so far as the role played by accused for pouring kerosene and setting fire. The third corroboration can be traced from the medical history given before the Doctor for the role played by the accused of pouring kerosene upon the deceased and setting fire. 48 given by the deceased before the police so far as the role played by accused for pouring kerosene and setting fire. The third corroboration can be traced from the medical history given before the Doctor for the role played by the accused of pouring kerosene upon the deceased and setting fire. Under these circumstances, we are unable to accept the contention of the learned Counsel appearing for the appellant-accused that there is material contradiction or inconsistency in the dying declaration. However, it is true that for the earlier incident, there is no full conformity and there are minor contradictions. But thereby, it cannot be said that the whole dying declaration for the role played by the accused for causing death of the deceased is to be discarded. Such minor contradiction in the earlier incident of giving threat for calling the deceased by the accused on the bank of the river are not the circumstances on the basis of which the conviction can be based nor such would take away the whole substratum of the case of the prosecution or declaration made by the deceased during her life-time before the Executive Magistrate. Under the circumstances, the contention raised by the learned Counsel for the appellant-accused for the alleged inconsistency in the dying declaration and thereby rendering the dying declaration unreliable cannot be accepted. 8. The aforesaid is coupled with two corroborative evidences for the place of offence and the half bottle of kerosene found from the place of the offence. There is also corroborative piece of evidence by the testimony of Mumtaz, P.W. 4, Exh. 17, for the injury sustained by her son Mohsin aged 5 years since the deceased had embraced Mohsin coupled with the evidence of the Dr. J.R. Shrivastav, P.W. 5, who had treated Mohsin for the burn injury. The medical evidence for the injury sustained by the deceased when Dr. J.R. Shrivastav examined and when the post-mortem was undertaken of the deceased by Navin Verma, P.W. 6, Exh. 21, supports the case of the prosecution. J.R. Shrivastav, P.W. 5, who had treated Mohsin for the burn injury. The medical evidence for the injury sustained by the deceased when Dr. J.R. Shrivastav examined and when the post-mortem was undertaken of the deceased by Navin Verma, P.W. 6, Exh. 21, supports the case of the prosecution. Therefore, it can be said that even if the Rule of prudence is applied, coupled with the dying declaration though found to be voluntary and in full conscious condition of the deceased, such corroboration does exist for supporting the case of the prosecution and the dying declaration of the deceased can be relied upon to the extent of playing role by the accused for causing death of the deceased. 9. Mr. Pathan, learned Counsel appearing for the appellant relied upon the decision of this Court in the case of State of Gujarat v. Mamubha Premsangji Jadeja, reported at 1999 (3) GLR 2613 , and contended that if there are more than one dying declaration and there are inconsistencies and conflicting versions, the dying declaration may be discarded by this Court. 10. In the case of State of Gujarat v. Mamubha Premsangji Jadeja (supra), it was not a case of appeal against conviction, but was a case of appeal against acquittal. The judicial scrutiny in an appeal against the order of acquittal would be different than that of a judicial scrutiny in an appeal against the order of conviction. Further, in the said case, this Court had recorded at Para 24 that as per the medical evidence, no injury was found with the aid of dhariya nor any dhariya was seized by the police. Further, at Para 25, it was recorded by the Court that the evidence of eye-witness was full of material contradiction and there was absence of medical certificates for the injury caused. It is in light of the fact situation, the observations were made. Such is not the fact situation in the present case, and further, the present appeal is against the order of conviction. Hence, the said decision is of no help to the learned Counsel for the accused. 11. Mr. Pathan, lastly contended that it was a matter of love affair and both, viz., the deceased and the accused had agreed to have self-immolation by getting fire and committing suicide. Hence, the said decision is of no help to the learned Counsel for the accused. 11. Mr. Pathan, lastly contended that it was a matter of love affair and both, viz., the deceased and the accused had agreed to have self-immolation by getting fire and committing suicide. He submitted that it is true that the deceased was set to fire at the first instance and the accused has not sustained any injury, but had run away. But in his submission, such circumstances may be considered by the Court for treating the case as falling under Sec. 304 Part I or II of I.P.C., and thereafter, the reduction of sentence, which may be considered in the present case. 12. It is by now well settled that the principal difference between the case falling under Sec. 302 and under Sec. 304 Part I or II of I.P.C. is the intention to cause death and as to whether the accused has taken any undue benefit of the situation or has acted in cruel manner or not are the broad and relevant aspects to be examined by the Court. It is not a matter where the deceased and the accused had met and there was any quarrel which had prompted the incident, but after the deceased was called by the accused by giving threat, both had separated, and thereafter, the accused had come with the bottle of kerosene at the residence of the deceased and led her to have simultaneous self-immolation. Had it been a case where the accused had also poured kerosene upon himself or put himself on fire or was there any attempt on the part of the accused to save the deceased, the argument or the contention may be considered differently, but in the present case, after pouring kerosene upon the deceased, the accused set fire and he ran away. Such would mean that the only intention on the part of the accused was to cause death of the deceased and there was no semblance of any sympathy towards the deceased by the accused. The aforesaid is coupled with the statement of the accused under Sec. 313 of Cr.P.C. that he was knowing the deceased, but there was no love affair. The aforesaid is coupled with the statement of the accused under Sec. 313 of Cr.P.C. that he was knowing the deceased, but there was no love affair. The conduct on the part of the accused can be said as of taking undue benefit and also of acting in a cruel manner of leading the deceased to invite death, and thereafter, escaping from the scene of offence. Further, the factum of having brought the kerosene by the accused after they separated and of pouring kerosene and of setting fire, if considered with the other evidence would make out a case for an intention to cause death of the deceased. Therefore, it cannot be said that the learned Sessions Judge has committed error in considering the case as falling under Sec. 302 of I.P.C. and not for the offence under Sec. 304 Part I or II of I.P.C. The only sentence for the offence under Sec. 302 of I.P.C. is life imprisonment with the fine, which has been so imposed by the learned Sessions Judge. Under the circumstances, the contention cannot be accepted. 13. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge in Sessions Case No. 96 of 2009 for conviction of the accused Mukesh @ Kaili Dalpatbhai Rathod for the offence under Sec. 302 of I.P.C. and for the sentence imposed with the fine deserves to be confirmed. Hence, confirmed. Appeal of the appellant-accused deserves to be dismissed. Hence, dismissed. R. & P. be sent back to the trial Court.